Experts, Grand Jury Ding City of Berkeley's 'Ridiculous' Email Policy

From Hillary Clinton to the East Bay, email is an unexpected political issue headed into the November election.

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Email should be easy. But it turns out Berkeley and other East Bay cities are doing email very wrong, at least according to a critical new report this week by the Alameda County Grand Jury

Here's what's happening: Berkeley automatically dumps city email communications into the trash bin after 90 days. This is maybe-sorta legal (more on that later). 
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The grand jury's big concern is that the city puts the onus of deciding what emails to save or delete forever on staff and officials, who often don't have sufficient training or knowledge to determine how to be in compliance with state laws.

This is a huge problem, according to the grand jury and local freedom-of-information advocates.

“It’s all ridiculous," is how Peter Scheer, with the Northern California-based First Amendment Coalition, put it.

Scheer said Berkeley and all California cities should instead save each and every email record, because this is a cheaper, safer, and more legally sound approach. And you "don't waste any employee's time making arbitrary decisions" about what what to keep and what to send to the digital graveyard.

"No company would do this," he said of email practices at Berkeley and other East Bay cities such as Pleasanton, Newark, and Hayward.

Berkeley Councilman Kriss Worthington agreed, and he actually pushed his colleagues to change city email policy last year. "The City manager at that time strenuously objected," he told the Express.

Worthington also said that he has spoken with city employees who had no idea that they needed to save records and emails.

The council member explained that, based on the grand jury report, Berkeley will take a look at reforming its email policy again on July 19. He hopes to discontinue what he views as the "rampant destruction of many many thousands of emails."

The city of Berkeley released a statement to Berkeleyside on Tuesday stating that its policy is on the up-and-up and in compliance with California law. "The City is currently in line with what many other cities and government agencies do," the statement read. 

Berkeley also said it costs a lot of money to store and search these records. "It’s an open question whether that’s a smart use of limited funds."

Scheer and others dismissed the idea that retention of email is expensive, due to cheap storage options and advanced search capabilities.  “That’s no longer an issue. It costs next to nothing," he said.

He also reiterated that Berkeley's policy is a liability. “If I was general counsel in one of these cities, I would say ‘Change this, or I’m resigning,’ because I would have no control here over the elected officials," he explained. 

The grand jury wrote in its report that "all employees cannot be expected to have appropriate legal knowledge" to know what emails to keep and which ones to delete. The jury was also concerned that "an individual who deletes email could be perceived as purposely hiding information to which the public has a right."

Email use by public officials has become a major, if unexpected, political issue heading into the November election. 

There is of course presumptive Democratic presidential nominee Hillary Clinton, and her contentious use of a private email server while secretary or state, which has fueled never-ending attack fodder for GOP challenger Donald Trump.

And, here in California, email use is also a front-burner legal issue. The California Supreme Court will likely rule on a landmark case later this year over whether communications by San Jose officials on private devices and email accounts is subject to disclosure and state Public Records Act requests.

In Berkeley, Worthington told the Express that his council colleagues have asked him to send emails to their private accounts, instead of city-issued email addresses (he noted that he always cc'd their city email when this occurred). "To me, it's unethical to keep your communications out of the public record," he explained.

The grand jury agreed that the number of cities that allow elected and public officials to use private email addresses, such as Gmail, for city business is another problem. 

Scheer reminded that, if a politician is using private email instead of city-issued addresses, the public or the city attorney must obtain an elected officials cooperation to access the records, in case of a lawsuit, investigation or PRA request.  "And they may not want to be so cooperative," Scheer said.

It's no secret that a significant number of public officials use private accounts such as Gmail or Yahoo for public work. Some critics say this is to circumvent public transparency and hide their communications from the public (aka, pesky reporters). Some public official say government technology is antiquated and that they need to use superior tech offered by Gmail.

Either way, using private email makes it a lot more difficult for local governments to access public records in case of civil suits or investigations, according to the grand jury.

Two East Bay cities, Union City and Newark, in fact automatically forward all emails for city officials to private accounts. And Emeryville officials have the option to forward all emails instead of using city addresses. The grand jury blasted these practices as unethical.

Look for more on public officials, email and records in next week's Express.

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